Botswana: Mascom Withdraws Appeal Over Staff Case

23 January 2019

Telecommunications giant Mascom Wireless has chickened out of a Court of Appeal case in which they wanted the highest court in the land to overturn the decision of the High Court in which junior employees who are members of Botswana Communication Workers Union (BOCOWU) wanted the company to collect their union subscription fees.

Mascom lost the case last year in which they refused to collect subscription fees for employees in Band 5 and remit to the union, insisting that such employees did not qualify to unionise as they fall in the management cadre.

On Tuesday, the company applied to the Court of Appeal to withdraw the case with costs. In the lower court Justice Gaopalelwe Ketlogetswe had ordered the company to facilitate deduction of subscriptions of members who are at band 5 with immediate effect.

Handing the judgment last year, Justice Ketlogetswe ruled that, "the decision of Mascom (the respondent) to treat all its employees in Band 5 as members of management is unlawful. The decision of Mascom to exclude deductions for members of BOCOWU who are at band 5 is unlawful and set aside. Mascom is hereby ordered to facilitate deduction of subscriptions of members who are at band 5 with immediate effect".

Beyond being ordered to pay costs of the lawsuit, which has been before the High court since 2016, Mascom was further ordered to pay the union an amount equivalent to membership subscriptions of all members of the union at Band 5 according to the balance of the months from the date of first subscription to the date of the judgment.

The order excludes positions of Radio Access Network (RAN) Senior Field Engineer and RAN Senior Support Engineer, who were found to be management cadres in terms of the definition provided by the Trade Unions and Employers Organisations Act (TUEOA) because there is reference to term management in their job descriptions.

Mascom had failed to provide job descriptions of several other positions in band 5, to which court could not agree that indeed they are part of management as envisaged by TUEOA.

"I am satisfied that Mascom has failed, except for RAN Senior Field Engineer and RAN Senior Support Engineer, to establish that the rest of other employees on band 5 are members of management. It seems a lot of emphasis has been placed (by Mascom) on the fact that some of the employees at band 5 supervise other employees and therefore for that reason they must be considered members of management. Pure supervision alone does not fall within the definition of member of management," Justice Ketlogetswe ruled.

The lawsuit

The trade union accused Mascom of contravening Section 48 of the Trade Union and Employers Organisations Act (TUEOA) after numerous attempts to get the company to effect monthly deductions for its members in Band 5 failed. Employees who form Band 5 comprise of many professionals such as Engineers, System Analysts, Database Administrators, Marketing Professionals and Shop Supervisors, who the union argued do not in any way form part of management.

Mascom was accused of trying to cripple the trade union because its members form a significant part of Band 5 and also because this category of employees is the highest paid among non-manager employees. Removing them from the list of union members will deprive the union of sizeable subscriptions and sufficiently dent its income, argued Serema.

Therefore, BOCOWU approached court to declare the decision to treat all employees in Band 5 as members of management unlawful and contrary to legal precedent, and to set aside the refusal to effect such deductions. They wanted court to order Mascom to facilitate the deductions immediately. The union also wanted Mascom to be ordered to pay them the balance of months from the date of the first subscription to the date of the judgment for all its members in Band 5. All the orders were granted on Friday.

At the centre of the dispute was Section 48 of TUEOA, which provides: "In this section, member of management means an employee who (a) has authority, on behalf of his employer, to employ, transfer, suspend, lay off, recall, promote, terminate the employment of , reward, discipline or deal with the grievances relating to the employment of any fellow employees or effectively to recommend any such action or the manner in which such grievances ought to be dealt with, if the exercise by him of that authority is not merely of a routine or clerical nature but requires discretion; (b) participates in the making of a general policy regarding relations between his employer and his fellow employees or any of them; or (c) is employed in a capacity that requires him to have to have full knowledge of the financial position of the undertaking or enterprise in which he is employed or gives him free personal access to other confidential information relating to the conduct of his employer's business." BOCOWU was represented by Kabo Motswagole of Motswagole and Company while Mascom had roped in Dineo Makati-Mpho of Collins, Newman and Co.

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